History of the United States Patent Office
The Patent Office Pony
A History of the Early Patent Office
Chapter 18 -- The New Order in Charge in the Patent Office

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CHAPTER EIGHTEEN
THE NEW ORDER IN CHARGE IN THE PATENT OFFICE

On October 31, 1836, Dr. Thomas P. Jones resigned his clerkship in the State Department, and he then opened his office as a patent agent in Washington. One of his first clients was George Escol Sellers, who had invented a furnace to burn anthracite coal. [footnote 1] Although Dr. Jones had, for at least eight years, published a report of the patents issued each month, the issue of The Journal of the Franklin Institute for January 1837 was without any such report, since the papers which he was preparing for publication were burned in the desk that he still maintained in the Patent Office. About March 1837, Dr. Jones was appointed the second patent examiner. [footnote 2]

During the wait for the completion of new Patent Office Building, some suitable accommodations were needed for the Patent Office personnel, growing in number. In September 1835, there were six employees of the Patent Office. By September 1837, there were 25 employees, of whom 14 had been hired to help restore the burned patents. The city authorities of Washington City offered the use, without rent, of fireproof rooms in the new city hall, parts of which were still under construction (and which still stands as the U.S. District Court for D.C.) The only charge made was for structural alterations necessary to accommodate the Patent Office in the building.

On January 1, 1838, Commissioner Ellsworth issued the Annual Report of the Patent Office for 1837. [footnote 3] Although there had been intermittent annual reports before this time, the Annual Report for 1837 began a long unbroken chain of annual reports first required by section 14 of the Act of March 3, 1837, making it the duty of the Commissioner to lay before Congress in the month of January annually, a detailed statement of expenditures, payments and patents issued and expired, "together with such other information of the state and condition of the Patent Office as may be useful to the Congress or to the public." These annual reports were published by one or both houses [Pg 111] of Congress, and, until the advent of the Official Gazette of the U.S. Patent Office in the 1870s, were in great demand by libraries, manufacturers, farmers, and inventors. The Annual Report included an agricultural report as a separate volume from 1849 through 1861. During some administrations, when the needs of the Patent Office were subordinated to those of the executive department to which it was attached, these reports were a frequent embarrassment to the cabinet officer in charge, whose shortcomings were loudly and publicly proclaimed by a Commissioner who not only had a right to report directly to Congress, but had a personal duty imposed by statute to provide Congress with such information as might be useful to Congress and the public, however embarrassing the administration might find it.

There was an immediate reduction in the number of patents granted under the new law. In 1835, the last full year under the old law, 757 patents were issued. In 1837, the first full year under the new law, 435 patents were issued. The Commissioner wrote that about one-third of applications being filed under the new law were rejected. That would make about 650 applications, all of which would have been patented under the old law. Perhaps the rest of the difference can be accounted for among those whose inventions were not new, and they knew it when they filed under the old law. Under the new law, these applications would not be filed.

In the effort to restore the burned patents, of which there were over 10,000, the Patent Office sent a letter to each inventor at the residence given at the time the patent was issued. Many inventors, of course, had changed their residences or died since their patents were issued, but many had been reached. At the conclusion of 1837, 2,000 patents had been restored. Eventually, 2,845 patents were restored. In later years, most of these patents were to become the X series of patents, each being given a number beginning with X to distinguish it from the new series of patents beginning in July 1836 with Patent No. 1 to John Ruggles. Of course, a few of the burned patents were in the new series, which began about five months before the fire.

There was at this time a rapid increase in inventions for improved agricultural implements to save the labor and improve the productivity of farmers. The Commissioner noted that inventors were optimistic, and probably not without reason, that the time was not far distant when plowing machines would be driven by steam. It was for continued belief in this statement that Mr. Ellsworth's last will was contested on the grounds that he must have been insane. [footnote 4]

But, wrote Ellsworth in the Annual Report for 1837, farmers might get great benefit from the establishment of a regular system for the selection and distribution of grains and seeds of the choicest varieties for agricultural purposes. [Pg 112] The Patent Office was crowded with men of enterprise, who, when they brought in their improved agricultural implements, were eager to communicate their knowledge of new and valuable varieties of seeds and plants. Many had given wonderful new varieties of seeds to Commissioner Ellsworth to distribute where he thought they would do the most good. Commissioner Ellsworth thought there should be a national depository of articles of that kind, from which they could be distributed to farmers in every part of the United States. He suggested that naval officers and diplomats in other countries in other parts of the world might willingly make collections of improved seeds and plants if they had a place to send them for the benefit of the nation. Selection of strains of Indian corn, for use in the Northern states in particular, could increase the crop by one-third with no additional labor. Mr. Ellsworth proposed to, and did, continue to distribute improved seeds in small packages to farmers throughout the country for their test, evaluation, and possible future large-scale use. The initial cost was low. The ultimate result, to be seen about twenty-five years later, was the splitting off of the Department of Agriculture from the Patent Office, where it had outgrown its parent's home.

By the Annual Report for 1838, a problem had been observed with the appeal procedure from adverse decisions of the patent examiners. A board of examiners was authorized in the Act of July 4, 1836, to be composed of three disinterested persons appointed as arbitrators by the Secretary of State, to hear any appeal from the Patent Office. This board was to be paid $25 per appeal. However, the applicants were introducing extensive additional evidence on appeal which had not been before the Patent Office on the initial examination, and the arbitrators on the board of examiners, who differed from case to case, frequently had no judicial experience and no knowledge of how to prevent being overwhelmed with time-consuming proceedings in a case which they were expected to decide for a total of $25, divided between them. It was becoming hard to find willing arbitrators. The Commissioner suggested that the appeals should be to the Chief Justice of the District of Columbia, who would have authority to determine the matter in chambers if he wished, or to allow introduction of evidence if he wished.

A problem was also being observed with the limited space available for the Patent Office in the City Hall. As more and more models arrived with applications or were reconstructed to replace burned models by the Patent Office, there was no space to display them. The Commissioner protested delays which were apparently occurring in the construction of the new Patent Office Building. He also observed that work in the Patent Office was being delayed by lack of examiners. Already the Patent Office had two examiners, and the [Pg 113] Commissioner asked for two assistant examiners to help them. There were over a hundred patent applications on hand which had not been reached by the present examiners. This number would delay issuance of patents for several months after filing the applications. Meanwhile, applicants were arriving in the city from distant parts of the country, expecting to file an application and take home a patent three or four days later.

By the Annual Report for 1838, Congress had asked the Patent Office to estimate the cost of collecting agricultural statistics for the nation. Ellsworth rejoiced in this inquiry, noting that a failure of the corn crop in the Middle and Southern states in the previous season had persuaded fearful farmers to make forced sales of their livestock, fearing that they could not feed them during the winter. Had there been good national crop statistics collected, they would have been aware of the unsurpassed crop of Indian corn on the western side of the Appalachian mountains, leading to very low prices on corn which could be shipped down the Missouri River. Meanwhile, the newly introduced "Baden" corn in the Mississippi valley promised to increase the crop of Indian corn by 50 percent. Good crops of corn were being raised on the borders of Canada, and strains of Siberian and Italian spring wheat had been distributed by the Patent Office. [footnote 5]

By December 1838, William P. Elliot was at his apparent hobby again, reporting to Secretary of State John Forsyth that Dr. Jones had been preparing patent applications for inventors while employed by the Patent Office. Forsyth wrote to Ellsworth that he was informed that Ellsworth had known of the matter for two months and required him to furnish an explanation. [footnote 6] Ellsworth replied that Mr. Elliot had confidentially informed him weeks earlier of his intention to file charges against Jones soon but said he was not ready to give his information yet. Ellsworth then asked Dr. Jones if he had prepared a specification for Asahel Collins since his appointment and was assured by Jones that he had not. Only a week before Forsyth's letter, Ellsworth was told by Elliot and Collins that a paper in Dr. Jones' handwriting, which was of record in a case between Collins and a Mr. Demphel, showed that Jones prepared Collins' specification. Ellsworth then offered to start an investigation immediately if they would leave this paper with him. Collins refused to do so while his case was pending. [footnote 7] In the reply to Forsyth was a letter from Jones to Ellsworth, concurred in by Collins, stating that he drew the specification for Collins, having been his agent prior to his appointment as patent examiner. [footnote 8] Another letter was included from Jones to Ellsworth in which he said that he had not undertaken any business from Collins directly or indirectly, had not received a cent from him, and that there was not then anything depending between them for which he was to derive any benefit. [footnote 9] [Pg 114]
Secretary Forsyth replied that President Van Buren had seen the letters and had required the case to be investigated under oath, both as to Dr. Jones and as to the delay of Mr. Ellsworth. Dr. Jones was to be required to show that he had not rendered any services for Collins since he was appointed for which he, at the time, expected to receive compensation. Mr. Elliot and Mr. Collins were to be requested to state their charges under oath. [footnote 10]

Ellsworth replied with details to show that he had no information on which to start an investigation until a week prior to Forsyth's first letter, and that he began his investigation almost immediately. [footnote 11] William P. Elliot also wrote to Forsyth, indicating that Mr. Ellsworth offered to investigate the charges immediately when they were called to his attention, but Mr. Collins would not furnish him with the evidence. Elliot also wrote that at some later time, charges would be brought, "however painful it might be to the person whose duty it would be to prefer them." Apparently, Mr. Elliot would have the Secretary believe that he did not like bringing charges. Sometime prior to mid-January 1839, Thomas P. Jones wrote one or more letters to the President, resigning his offices as patent examiner and member of the board for restoring the patent models, but saying he was leaving office with clean hands. [footnote 12] Commissioner Ellsworth was totally exonerated, and Dr. Jones was replaced as examiner by Dr. Thomas W. Donovan of Maryland.

The Annual Report for 1839, dated January 1, 1840, said that the new Patent Office Building was within a very few weeks of completion, and was soon to provide accommodations for the office staff, room for the models and specimens, and facilities for collecting and distributing seeds. There were about 800 applications filed in 1839, of which 400 were rejected on examination, with no appeal being taken from any rejection.

The Annual Report for 1840 indicated that the new building was occupied, with adequate room for displaying models. The Patent Office distributed 30,000 packages of seeds that year.

In February 1840, Mr. Ellsworth learned that Henry Bishop, the messenger, had been stealing franked envelopes and using them for private correspondence. He was induced to resign. [footnote 13] A few days later, Bishop filed charges against Ellsworth for abuse of franking privilege, neglecting his duties, stealing office stationery, etc. [footnote 14] Ellsworth immediately wrote that he was always the first in and last out of the office and the rest of the charges were also untrue. Nothing resulted from the charges.

In 1841, the Secretary of State approved the use of the temporarily empty large hall in the new Patent Office Building by the National Institute, an association incorporated for twenty years to have custody of the personal effects of James Smithson, founder of what was later to be the Smithsonian [Pg 115] Institution, of the collections made by the Wilkes exploring expedition, and donations from many societies and individuals. In addition to the collections of the National Institute and the patent models, many costly or invaluable objects belonging to the State Department were to be displayed in the National Gallery. An appropriation was requested for watchmen to guard the building and for fencing the public square on which the building stood to prevent valuable objects from being stolen.

Mr. Ellsworth noted that agricultural chemistry was progressing at a good pace. It was becoming possible to extract oil for oil lamps from lard and also from corn, whereas previously only whale oil or possibly olive oil burned well in an oil lamp. [footnote 15]

Toward the end of 1841, Commissioner Ellsworth wrote a private letter to Secretary of State Daniel Webster, [footnote 16] pointing out that the two examiners, Keller and Donovan, disliked each other so much that they would communicate with each other only in writing. Mr. Ellsworth said that this was extremely embarrassing to the Patent Office, that the only alternative was a change of examiners, and that he could make this statement with no political motive. Soon afterwards, Thomas W. Donovan left the Patent Office on April 1, 1842, or shortly before and was replaced by Charles G. Page. There were by this time also two assistant examiners, Henry Stone and William P.N. Fitzgerald.

In the Annual Report for 1843, Commissioner Ellsworth included for the first time the claims of all patents issued during the year. At that time, no periodical in the country published the claims of all patents, and half the patent applications filed were rejected because the applicants could not know what had been done previously in all cases. Also, for the first time, the Commissioner had the examiners prepare individual reports of the progress of the arts that they examined for inclusion in the Annual Report of the Patent Office.

Ellsworth held forth in this report on the reduction in cost of commonly purchased items. Shirt cloth which had cost 62 cents a yard thirty years earlier now cost eleven cents a yard. Hooks and eyes thirty years earlier cost $1.50 a gross, now cost fifteen cents a gross. Horseshoes, formerly turned out one at a time by blacksmiths, were now sold ready made at five cents a pound.

[Page 116 illustration: Portrait of Norbert Rillieux] [Pg 116]
The report carried a reprint from the New Orleans Bee of the invention by Norbert Rillieux (1806-1894) of an apparatus for the evaporation of molasses to produce sugar while heating the molasses entirely by steam. A number of vacuum pans were used in series to evaporate the water with the use of only one third of the fuel used in the usual method. Mr. Rillieux called this his triple-effect evaporating apparatus. R.J. Packwood, who made the report, said that he found the apparatus was arranged with the greatest of care and very durable. It worked without any accident and was ready to be used again during the next season. Mr. Rillieux was black, or at least of mixed blood, and was educated in France. His father Vincent Rillieux was a French engineer and his mother Constance Vivant was a light-skinned black woman. About 1861, when restrictions on free blacks were increased in Louisiana, he returned to France, to spend the rest of his long life. In his later life, he worked to decipher Egyptian hieroglyphics. [footnote 17]

Mr. Keller, still one of the examiners in 1843, noted that although the models of early inventions had been destroyed in the fire of 1836, it had been his privilege "in boyhood and early manhood, to study the models of those beautiful specimens of American ingenuity, many of which yet live in my recollection." He also wrote: "Since the invention of Oliver Evans, which has given him enviable reputation wherever flour is used, no marked invention in mills has been made, although many minor improvements have been patented and introduced in the manner of dressing mill stones." The other examiner, Charles G. Page, also made a report, not quoted here, it having little of broad historical interest.

Mr. Ellsworth wrote one sentence in the 1843 report which has been misunderstood and misquoted ever since. He wrote: "The advancement of the arts, from year to year, taxes our credulity, and seems to presage the arrival of that period when human improvement must end." The statement which is usually falsely attributed to some Commissioner or another, based upon this, is that "Everything that can be invented has been invented." No Commissioner has ever said this, and probably no Commissioner has ever thought it. In his 1988 book, Victory without War, Richard Nixon attributed the latter statement as of 1899 to Commissioner Charles H. Duell, who also never said it. [footnote 18] [Pg 117]
In his last Annual Report, the one for 1844, Commissioner Ellsworth wrote that 502 patents issued during the year, up from 435 during 1837, the first full year under the new law. He noted that the inventory of models was expanding so fast that there was no room to properly classify them, that the models of rejected applications were not exhibited at all for lack of sufficient room, and that the beautiful collection of curiosities forming the National Gallery, while occupying necessary room, were too important to be crowded out. He recommended adding the contemplated west wing to the original building.

The law had given the power to a board of commissioners, consisting of the Secretary of State, the Commissioner of Patents, and the Solicitor of the Treasury, to extend patents issued almost 14 years ago and about to expire, for an additional seven years, provided the inventors have not yet been able to make the invention profitable. Mr. Ellsworth noted that none of the patents for which extensions were requested had been examined for novelty under the old law under which they issued, and that the board of commissioners would not extend a patent if it were not shown to be novel. The authority to extend patents was given under the Act of July 4, 1836, and the board had extended seven patents since that act. Of course, Congress had always had, and has to this day, the power to extend any patent for what seems sufficient reason.

Charles M. Keller spent several years studying law at night after office hours, and in May 1845, he started a long tradition among patent examiners by leaving the Patent Office to practice patent law. He initially established an office in Washington, but soon established a successful patent law practice in New York City.